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UPDATE: On September 22, the Department of Homeland Security released information on its plans to change the public charge rule. This fact sheet is based on the latest information available.

This fact sheet is an abridged version of the National Immigration Law Center (NILC)’s fact sheet on the federal Notice of Proposed Rulemaking on immigrant public charges. You can find the original fact sheet here.

The Trump administration is pushing a proposed rule that could essentially force immigrant families, including children who are citizens, to choose between getting the help they need and reuniting with their loved ones. The Department of Homeland Security (DHS) has informed the Office of Management and Budget (OMB) that it plans to alter the longstanding definition of and application of “public charge” provisions in immigration law. Based on the information released by DHS, the draft rule would greatly expand the list of factors that could be considered in determining whether a person is likely to become a public charge. Immigrants’ use of programs related to their health, well-being, and education could be weighed in deciding whether to deny entry to the country or lawful permanent residence.

WHAT’S AT RISK?

Federal law allows immigration and consular authorities to deny admissions to the United States or adjustments to Lawful Permanent Resident status to a person they deem likely to become a public charge. Under the current definition, a public charge is a person who is primarily dependent on the government for subsistence. Current policy allows officials to consider only two types of public benefits in a public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense. Adoption of the proposed regulations would mark a departure from longstanding interpretation of the public charge rules. If the draft rule is adopted, benefits that could be considered in a public charge determination would include virtually any public service such as Medicaid (emergency Medicaid is excluded), Supplemental Nutrition Assistance Program (SNAP), housing assistance such as Section 8 housing vouchers, and the Low Income Subsidy for prescription drug costs under Medicare Part D. DHS asks for input on inclusion of the Children’s Health Insurance Program (MIChild in Michigan), but this program is not included in the current regulatory text.

The draft NPRM also adopts a new bright-line threshold for households that hope to overcome a “public charge” test – by requiring that the immigrant (not just the sponsor) earn at least 125 percent of the Federal Poverty level – and by weighing as “heavily positive” a household income of 250 percent of the Federal Poverty Level. This means, to avoid scrutiny under the public charge test, a family of four would need to earn nearly $63,000 annually. The draft also lays out negative factors to be “heavily weighted” in a public charge determination. Heavily weighted negative factors include receiving public benefits currently, limited English proficiency, as well as having a physical or mental health condition that could affect an individual’s ability to work, attend school or care for themselves.

The draft NPRM states that noncash benefits previously excluded from the public charge determination will be considered only if those benefits are received after the effective date of the final rule. The exception is if benefits exceed a certain minimal threshold, in which case benefits received 36 months prior to applying for status will be considered.

WHO WOULD BE AFFECTED?

The public charge policy primarily affects noncitizens who are applying for lawful permanent resident status through family-based visa petitions. Some immigrants are not subject to the public charge rules. These include refugees; asylees; survivors of trafficking and other serious crimes; self-petitioners under the Violence Against Women Act; special immigrant juveniles; and certain people who have been paroled into the U.S. And, lawful permanent residents are not subject to a public charge test when they apply for citizenship. These exceptions are encoded in law and cannot be changed by executive or administrative action.

HOW SOON COULD THE REGULATION BE ISSUED?

Federal agencies are required to inform the OMB of any significant regulations they plan to release and to submit drafts of those proposed regulations for its review. On March 30, the draft NPRM was submitted to OMB for review. On September 22, DHS released text of the rule. Once the OMB review is complete, the agency must share the proposed regulation with the public by publishing an NPRM in the Federal Register, and the public is provided an opportunity to comment on the proposed rule. In a press release on September 22, DHS indicated that the rule would be published in the coming weeks.

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